Seizing the Initiative Against Preemption:The Rediscovery of Fundamental Rights

Dan Leftwich, Esq.∗

“The most common way people give up their power is by thinking they don’t have any.”
Alice Walker

I. INTRODUCTION AND SUMMARY

The right of local self government is under siege in Colorado, primarily through corporations using their influence with allies in state government to impose state preemption over local laws. This coordinated assault on the rights of local governments and their citizens to pass local laws banning harmful processes or products, is apparently part of a national strategy, led by the American Legislative Exchange Council (“ALEC”), to prevent progressive policy gains at the municipal level, including bans on hydraulic fracturing for oil and gas, minimum wage increases, GMO crops, assault weapons bans, and anti-discrimination laws.

Following a description in Part II of the hazardous conditions that led Colorado communities to enact local fracking moratoria, Parts III-V of this Article will describe the constitutional rights of the registered electors of Longmont, Fort Collins, Broomfield, and other communities in Colorado to enact initiatives under Article V, §1 of the Colorado Constitution, independent from the general assembly, to restrict fracking in their communities. The municipal governments where these initiatives were enacted are inherently inadequate representatives of the registered electors who sponsored, worked to promote, and voted on these initiatives. The rights in Article V belong to the registered electors of those municipalities, not the municipal governments. These fundamental rights cannot be preempted by the state (or COGA acting as its proxy) because the people’s rights to legislate to protect their communities from this dangerous industrial activity are superior to the rights of the legislature, the executive branch, and the municipal governments in which these initiatives were enacted. Under Article V, §1, the registered electors have the explicit right to prohibit what the state authorizes, even where the state claims some interest is impacted. Any attempt by the state (directly, or through COGA) to preempt these local initiatives is a violation of Article V, §1, and the Separation of Powers principles set out in Article III of the Colorado Constitution.

Part VI of this Article will describe how COGA’s use of state preemption, apparently with unfettered discretion, to target initiatives based on their content and the way people vote imposes a chilling effect on core political speech, freedom of association, and the right to equal participation in the political process. These fundamental rights are protected under the First Amendment, and the Due Process and Equal Protection Clauses of the United States and Colorado Constitutions. Current state preemption methodology uses an ad hoc balancing of local vs. state interests to determine whether a municipal law is not purely a matter of local concern, and is therefore subject to preemption. This inconsistent standard virtually ensures that a municipality’s local law will be subject to preemption as the state can almost always demonstrate some interest that would be materially impeded. However, when fundamental rights are infringed by state action, due process requires the state to meet a “strict scrutiny” standard. Under strict scrutiny, there is no need for complex balancing of local vs. state interests. Rather, a legislative enactment that infringes on a fundamental right is constitutionally permissible only if it is necessary to promote a compelling state interest and is precisely tailored to do so in the least restrictive manner possible. The Supreme Court has called this standard “well-nigh insurmountable.” The available evidence suggests that COGA, asserting the state’s interest under the Oil and Gas Conservation Act to justify preemption, cannot meet strict scrutiny.

These claims and defenses to preemption have not been presented to the Colorado Supreme Court, in part, because the proper parties are not represented there. In addition, precedent used to preempt municipal laws restricting fracking only analyzed the preemption issues according to the home rule municipalities’ legislative powers in Article XX of the constitution. The registered electors’ fundamental rights to enact legislation by initiative under Article V, and their constitutional rights to engage freely in political speech, association, and voting without government restraint, were not discussed at all in cases relied on for preemption. As a result, those cases are not controlling precedent where the right of initiative and other fundamental rights are raised as a defense.

Article V was amended in 1910 because the people were concerned about the corrupting influence of special interests in state government. They found it necessary to reserve the power to pass legislation of every character in or for their respective municipalities, without interference from the general assembly and the executive branch. The people created the general assembly and allow it to legislate on their behalf as long as it acts in a way that suits their needs. If state legislation does not protect the public health, safety and environment against the hazards of fracking or other dangerous processes, the people retain the fundamental right to legislate directly by passing initiatives for that purpose. This Article will describe how those rights can be rediscovered, and asserted in defense of local self-government.